Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 1 of 16
`NO. 13–4712
`SECTION "H" (4)
`Before the Court are Cross-Motions for Summary Judgment (Docs. 24 &
`25). For the following reasons, Plaintiff's Motion is GRANTED and Defendant's
`Motion is DENIED. The Court will enter final judgment in favor of Plaintiff.
`Plaintiff filed this suit seeking reversal of the denial of long-term disability
`benefits under an employee disability benefit plan governed by the Employee
`Retirement Income Security Act of 1974 (“ERISA”).1 Defendant is the
`administrator of the plan.
`129 U.S.C. §§ 1001–1461.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 2 of 16
`Plaintiff was employed by DHH Investments as an automobile body
`repairman ("bodyman"). As part of his employment, Plaintiff participated in a
`disability benefits plan. Defendant funded the plan through an insurance policy
`it sold to Plaintiff's employer. Defendant also was responsible for all benefits
`In October of 2009, Plaintiff was awarded short-term disability benefits on
`the basis of an inguinal hernia. He was paid benefits until May of 2010, the
`maximum duration available under the plan. In May of 2010, Defendant opened
`a new claim on Plaintiff's behalf for long-term disability benefits and Defendant
`paid these benefits from May of 2010 until April 4, 2012. On April 5, 2012,
`Defendant contacted Plaintiff and informed him that he no longer met the plan's
`definition of disabled and that his benefits would be terminated effective April
`4, 2012. Plaintiff appealed this decision through Defendant's administrative
`review process. After receiving a final decision denying his claim for benefits,
`Plaintiff filed the instant suit.
`"The summary judgment standard for ERISA claims is 'unique,' because
`the Court acts in an appellate capacity reviewing the decisions of the
`administrator of the plan."2 "Where the decision to grant or deny benefits is
`reviewed pursuant to ERISA, 'a motion for summary judgment is merely the
`conduit to bring the legal question before the district court.'"
`2 Reed v. Huntington Ingalls Indus., Inc., No. 11–1816, 2012 WL 4460822, at *2 (E.D.
`La. Sept. 26, 2012).

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 3 of 16
`An administrator's decisions regarding plan terms and eligibility for
`benefits are subject to de novo review in the district court "unless the benefit
`plan gives the administrator or fiduciary discretionary authority to determine
`eligibility for benefits or to construe the terms of the plan."3 If the plan grants
`such discretion, the administrator's determinations are reviewed only for abuse
`of discretion.4 In the Fifth Circuit, an administrator's factual determinations are
`always reviewed for abuse of discretion, regardless of whether the plan grants
`the administrator discretionary authority.5 The parties concede, and the Court
`is convinced that, the abuse of discretion standard applies to this matter.
`Under this standard, the Court looks to whether the administrator acted
`arbitrarily or capriciously.6 "A decision is arbitrary only if 'made without a
`rational connection between the known facts and the decision or between the
`found facts and the evidence.'"7 The Court will uphold the administrator's
`decision "if it is supported by substantial evidence."8 The Court's review "need
`not be particularly complex or technical; it need only assure that the
`administrator's decision fall somewhere on a continuum of reasonableness—even
`if on the low end."9 "A district court may not engage in de novo weighing of the
`3 Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
`4 Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir. 2004).
`5 Id.
`6 Meditrust Fin. Servs. Corp. v.. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999).
`7 Id. at 215
`8 Id.
`9 Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009).

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 4 of 16
`The Court begins its discussion with the issues on which the parties agree.
`There is no dispute that Plaintiff was entitled to short-term disability benefits
`as a result of his injury or that Plaintiff was initially entitled to long-term
`disability benefits. The parties also agree that, under the terms of the plan,
`Plaintiff was only entitled to long-term disability benefits if "due to sickness,
`pregnancy or accidental injury, you are receiving Appropriate Care and
`Treatment from a Doctor on a continuing basis; and . . . you are unable to earn
`more than 80% of your Predisability Earnings . . . at your Own Occupation11 for
`any employer in your Local Economy."12 Therefore, the sole issue presented is
`whether, on April 4, 2012, Plaintiff was capable of earning more than 80% of his
`predisability earnings working as a bodyman. Defendant concluded that he was.
`This Court must determine whether that decision was arbitrary and capricious.
`10 Dramse v. Delta Family-Care Disability and Survivorship Plan, 269 Fed. Appx. 470,
`478 (5th Cir. 2008).
`11 "'Own Occupation' means the activity that you regularly perform and that serves as
`your source of income. It is not limited to the specific position you held with your Employer.
`It may be a similar activity that could be performed with your Employer or any other
`employer." Administrative Record at M-0018. The administrative record for Plaintiff's claim
`was submitted to the Court manually, thus it does not appear in the electronic Court record.
`Where the Court cites to the administrative record, it does so using the bates stamped
`pagination contained in the record.
`12 This definition of disability only applied for the first 24 months that Plaintiff received
`benefits under the plan. After 24 months, the plan would only pay benefits if Plaintiff was
`unable to earn more than 60% of his predisability earnings at any occupation in the local

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 5 of 16
`It is helpful to begin with a review of Plaintiff's medical and claim history.
`A. Medical and Claims History
`On October 14, 2009, Plaintiff experienced severe pain in his abdominal
`and groin area while at work. He was transported to the hospital where he was
`diagnosed with an inguinal hernia. Plaintiff underwent surgery to repair the
`hernia. While the surgery appears to have been successful, Plaintiff continued
`to experience severe pain in his lower abdomen. When Plaintiff's pain failed to
`abate, he was referred to Dr. Skaribas, a pain management specialist.
`Dr. Skaribas first saw Plaintiff on April 8, 2010. Dr. Skaribas diagnosed
`Plaintiff with bilateral ilioinguinal neuralgia, or severe nerve pain in the groin
`area.13 Plaintiff was prescribed pain medication and scheduled for a nerve block
`procedure. The nerve block was performed on August 17, 2010, and Plaintiff
`experienced temporary improvement.
`On June 23, 2010, pursuant to a request from Defendant, Plaintiff's
`employer submitted a form detailing the requirements of a bodyman. The form
`indicated, as relevant to Plaintiff's claim, that a bodyman was required to
`occasionally lift up to fifty pounds and was never required to lift more than one
`hundred pounds. Curiously, Plaintiff's employer did not indicate with what
`frequency bodymen were required to lift fifty to one hundred pounds.
`On March 25, 2011, Dr. Skaribas submitted an "attending physician
`statement" to Defendant. Dr. Skaribas indicated that Plaintiff was suffering
`from chronic pain syndrome and ilioinguinal neuralgia and that Plaintiff was
`13 See Stedman's Medical Dictionary 199700, 271340 (27th ed. 2000).

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 6 of 16
`incapable of standing for any period of time or lifting any weight.
`In July of 2011, Plaintiff was in an automobile accident that Dr. Skaribas
`believed exacerbated Plaintiff's condition.
`Dr. Skaribas's notes from September of 2011 indicate that Plaintiff
`continued to experience severe nerve pain following the nerve block procedure.
`Dr. Skaribas saw Plaintiff again in October and November of 2011 and
`noted on both occasions that Plaintiff was continuing to experience severe pain.
`On January 11, 2012, Dr. Skaribas saw Plaintiff and reviewed an MRI
`that was completed in late 2011. The MRI report indicated that Plaintiff had a
`multi-level disc degeneration in his lumbar spine with multiple herniated discs.14
`Dr. Skaribas noted that Plaintiff was continuing to experience severe pain.
`On February 9, 2012, at Defendant's request, Plaintiff underwent an IME
`with Dr. Silver. Dr. Silver noted that Plaintiff expressed complaints of severe
`pain in his groin, lower back, and legs. Dr. Silver concluded that Plaintiff was
`suffering from chronic pain syndrome, ilioinguinal neuritis, and chronic low back
`syndrome with herniated discs. Dr. Silver expressed some skepticism regarding
`the credibility of Plaintiff's pain complaints, as well as Plaintiff's diagnosis of
`ilioinguinal neuritis, and opined that Plaintiff was able to return to work. Dr.
`Silver did not identify or discuss the nature of Plaintiff's prior work.
`Defendant wrote to Dr. Silver and requested clarification regarding what
`work Plaintiff would be able to do, noting that Plaintiff had previously worked
`14 This MRI report is not in the administrative record, however, it appears that
`Defendant had the report at some point as it is referenced in the report prepared by Dr. Silver.
`See M-0344.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 7 of 16
`as a bodyman and that the bodyman job was classified as heavy work. Dr. Silver
`responded on March 12, 2012 and opined that Plaintiff was able to work no more
`than eight hours per day and lift no more than fifty pounds.
`On March 14, 2012, Dr. Skaribas saw Plaintiff and noted that he was
`continuing to experience severe pain in his back, groin, and legs. Dr. Skaribas
`referred Plaintiff to a spine surgeon and reduced Plaintiff's narcotic dosage in
`an effort to reduce the risks of possible opioid dependency.
`On April 5, 2012, Defendant informed Plaintiff that his disability benefits
`were terminated, effective April 4, 2012. Defendant specifically cited the report
`of Dr. Silver and noted that Plaintiff was able to lift up to fifty pounds and that
`his prior job as a bodyman did not require lifting more than fifty pounds.
`On May 8, 2012, Dr. Skaribas wrote a letter to Defendant. Dr. Skaribas
`indicated that he had received a copy of Dr. Silver's report, and that he disagreed
`with his findings. He further noted that an examination of Plaintiff revealed
`both objective and subjective findings that supported a finding of disability, and
`that Dr. Skaribas's evaluation of Plaintiff's functional capacity had not changed
`since March of 2011.
`On June 15, 2012, the Social Security Administration ("SSA") issued a
`decision denying Plaintiff's request for Social Security Disability benefits. The
`Administrative Law Judge ("ALJ") found that Plaintiff suffered from chronic
`ililoinguinal neuraliga and degenerative disc disease and that Plaintiff was not
`capable of returning to his prior job as a bodyman. Specifically, the ALJ found
`that Plaintiff was only capable of lifting up to 20 pounds occasionally and that

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 8 of 16
`he was "unable to perform past relevant work."15 Because the ALJ found that
`Plaintiff had the ability to perform some work, Plaintiff's claim for social security
`disability benefits was denied.
`Dr. Skaribas saw Plaintiff again in May, July, and September of 2012 and
`noted that Plaintiff continued to experience severe pain. At each of these visits,
`Dr. Skaribas concluded that Plaintiff needed to continue the prescribed pain
`medication, including narcotics.
`On September 19, 2012, Plaintiff formally appealed Defendant's decision
`to terminate his benefits. Plaintiff submitted an affidavit with his appeal in
`which he attested that his job occasionally required lifting up to 150 pounds.
`On October 18, 2012, at Defendant's request, Dr. Kalen reviewed Dr.
`Silver's report. Dr. Kalen mentioned the presence of the unfavorable SSA
`decision but did not discuss any of the ALJ's findings. Dr. Kalen indicated that
`she unsuccessfully attempted to contact Dr. Skaribas regarding Plaintiff's
`condition. Dr. Kalen concluded that Plaintiff was not suffering from any medical
`conditions that limited his ability to work and that Plaintiff's lumbar MRIs were
`"unremarkable." She also noted that she did not have any of Plaintiff's medical
`records after April 5, 2012.
`On November 21, 2012, Dr. Kalen issued an addendum to her report. She
`indicated that she had been provided with additional medical records and that
`her opinion was unchanged. She specifically noted that Plaintiff had undergone
`an MRI in late 2011 but that she had not received a copy of the MRI images or
`15 Administrative Record, M-0960.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 9 of 16
`report. Relying on Dr. Silver's description of the MRI findings, Dr. Kalen
`reiterated that her conclusion was unchanged.
`On December 6, 2012, Defendant issued a final decision denying Plaintiff's
`appeal. The decision relies on the opinions of Dr. Silver and Dr. Kalen and
`specifically concludes that Plaintiff is capable of lifting up to 50 pounds
`occasionally. Having determined that Plaintiff was able to meet the physical
`requirements of his "own occupation," Defendant found that Plaintiff no longer
`met the plan's definition of disabled. Defendant's final decision makes no
`mention of the SSA decision.
`B. Defendant's Decision was Arbitrary and Capricious
`In reviewing Defendant's decision, the Court must consider all of the
`circumstances surrounding the decision.16 This includes the medical evidence,
`any structural conflicts of interest inherent in plan administration, and, where
`applicable, relevant SSA decisions.17 In reaching the conclusion that Defendant
`abused its discretion, the Court relies heavily on the recent Fifth Circuit decision
`in Schexnayder v. Hartford Life and Accident Insurance Company.
`In Schexnayder, the plaintiff was denied long-term disability benefits by
`Hartford.18 Schexnayder claimed to be suffering from several conditions that
`completely prevented him from working.19 Hartford agreed that Schexnayder
`was unable to perform his own occupation and paid him long-term disability
`16 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008).
`17 Schexnayder v. Hartford Life & Acc. Ins. Co., 600 F.3d 465, 469–71 (5th Cir. 2010).
`18 Id. at 467.
`19 Id.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 10 of 16
`benefits under the plan for 24 months.20 After 24 months, however, the plan's
`definition of disability changed.21 In order to receive more than 24 months of
`disability payments, Schexnayder was required to demonstrate that he was
`unable to perform any occupation.22 Hartford concluded that Schexnayder was
`able to perform full-time sedentary work.23 Because Schexnayder was not
`incapable of working, Hartford declined to pay any additional benefits.24
`Schexnayder appealed and Hartford employed several reviewing physicians who
`concluded that he was capable of performing some work.25 Relying on these
`conclusions, Hartford denied benefits.26
`After exhausting his administrative remedies, Schexnayder filed suit in
`federal district court.27 The district court issued judgment for Schexnayder and
`Hartford appealed.28 On appeal, the Fifth Circuit noted that Hartford's
`investigation revealed conflicting medical evidence regarding the extent of
`Schexnayder's physical limitations.29 Specifically, Hartford's reviewing
`physicians questioned the credibility of Schexnayder's pain complaints and
`concluded that the complaints were not consistent with the objective medical
`20 Id.
`21 Id. at 467–68.
`22 Id. The plan at issue in this case contains a similar provision.
`23 Id. at 468.
`24 Id.
`25 Id.
`26 Id.
`27 Id.
`28 Id.
`29 Id. at 469.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 11 of 16
`evidence.30 In the face of this conflicting testimony, the Fifth Circuit held that
`the decision was based on substantial evidence.31
`This analysis, however, did not complete the Court's inquiry. The Court
`was required to consider the impact of any conflict of interest.32 The Court noted
`that Hartford not only funded the plan but also made the benefits
`determinations.33 The Court found that this structural conflict of interest was
`exacerbated by the absence of any control measures designed to minimize the
`impact of the conflict.34 Finally, the Court held that Hartford's failure to address
`the SSA finding that contradicted its decision constituted procedural
`unreasonableness.35 That procedural unreasonableness, coupled with Hartford's
`structural conflict of interest, compelled the conclusion that Hartford had abused
`its discretion.36
`The instant matter is materially indistinguishable from Schexnayder.
`Defendant's investigation revealed conflicting medical evidence regarding the
`extent of Plaintiff's physical limitations. The reviewing physicians questioned
`the credibility of Plaintiff's pain complaints and concluded that the complaints
`30 Id.
`31 Id. at 470.
`32 Id.
`33 Id.
`34 Id.
`35 Id. at 471 ("Because Hartford failed to acknowledge an agency determination that was
`in direct conflict with its own determination, its decision was procedurally unreasonable.).
`36 Id. ("Although substantial evidence supported Hartford's decision, the method by
`which it made the decision was unreasonable, and the conflict, because it is more important
`under the circumstances, acts as a tiebreaker for us to conclude that Hartford abused its

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 12 of 16
`were not consistent with the objective medical evidence.
`As in Schexnayder, Defendant, MetLife, has a structural conflict of
`interest. Specifically, MetLife both administers and funds the plan. Thus,
`Defendant's decision to pay or deny benefits directly impacts its bottom line.
`Additionally, there is no evidence that Defendant has taken any significant steps
`to minimize the impact of the conflict.
`Finally, Defendant failed to address the SSA decision that contradicted
`Defendant's decision to deny benefits. Defendant insists that this case is
`distinguishable from Schexnayder because Schexnayder involved a favorable
`SSA decision, while the decision in Plaintiff's case was unfavorable. This is a
`distinction without a difference. While it is true that the SSA declined to award
`Plaintiff disability benefits, the ALJ judge specifically found that "[t]he physical
`demands of [Plaintiff's] past work exceed his residual functional capacity."37 The
`SSA decision was in direct conflict with Defendant's finding that Plaintiff can
`return to work as a bodyman. Defendant's denial does not mention, much less
`attempt to address, this discrepancy.38
`Indeed, the record is devoid of any evidence that would suggest that
`Defendant afforded the SSA decision any consideration at all. Dr. Kalen
`mentions that the SSA denied benefits but does not discuss the decision. The
`Court cannot say with confidence that Dr. Kalen or any of Defendant's
`employees even read the ALJ's decision. Instead, it appears that Defendant may
`37 Administrative Record, M-0960.
`38 Id. at M-0721–00725.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 13 of 16
`have viewed the fact that the decision was unfavorable as a fact supporting its
`decision to deny benefits.
`Considering the contradictory medical evidence, the failure to address the
`SSA decision and Defendant's structural conflict of interest, the Court finds
`Defendant's denial of benefits was an abuse of discretion and grants summary
`judgment to Plaintiff. It is important to note, however, the outer boundaries of
`the Court's decision today. The Court has granted judgment to Plaintiff because
`Defendant unreasonably concluded that Plaintiff was able to return to work as
`a bodyman. Under the terms of the plan, this decision entitles Plaintiff to
`precisely eight days of benefits, from April 5–12, 2012. On April 12, 2012, the
`plan's definition of disability changed. After April 12, Plaintiff would only
`receive benefits if he could demonstrate that he was unable to earn 60% of his
`predisability earnings at any gainful occupation.39 Because Defendant never
`reached a conclusion on this issue, the question of Plaintiff's entitlement to
`benefits under this provision is not before the Court and the Court expresses no
`C. Attorney's Fees
`Under ERISA, "the court in its discretion may allow a reasonable
`attorney's fee and costs of action to either party."40 In deciding whether to award
`attorneys' fees to a particular party,
`a court should consider such factors as the following: (1)
`the degree of the opposing parties' culpability or bad
`39 Id. at M-0018.
`40 29 U.S.C. § 1132(g)(1).

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 14 of 16
`faith; (2) the ability of the opposing parties to satisfy an
`award of attorneys' fees; (3) whether an award of
`attorneys' fees against the opposing parties would deter
`other persons acting under similar circumstances; (4)
`whether the parties requesting attorneys' fees sought to
`benefit all participants and beneficiaries of an ERISA
`plan or to resolve a significant legal question regarding
`ERISA itself; and (5) the relative merit of the parties'
`positions. No one of these factors is necessarily decisive,
`and some may not be appropriate in a given case, but
`together they are the nuclei of concerns that a court
`should address in applying section [1132(g)(1)].41
`Applying the factors to this case, the Court cannot find any evidence of bad
`faith on the part of Defendant. Examples of bad faith conduct include, situations
`in which "the insurer provide[s] additional compensation for plan administrators
`who den[y] claims or [] the insurer has a history of biased claims."42 In the
`absence of such evidence in this case, the Court finds that the first factor weighs
`against the award of attorney's fees. There is no question that Defendant has
`the ability to satisfy an award, therefore the second factor weights in favor of an
`award. Awarding attorney's fees to Plaintiff in this case may have some
`deterrent effect on future benefits decisions made by Defendant, therefore the
`Court finds that the third factor weighs slightly in favor of an award. Plaintiff
`in this case has not presented any significant legal question, nor does he seek to
`benefit all participants of the plan at issue, therefore the Court finds that the
`fourth facts weighs against an award. Finally, as the Court has already
`41 Schexnayder, 600 F.3d at 471 (citing Iron Workers Local No. 272 v. Bowen, 624 F.2d
`1255, 1266 (5th Cir.1980)).
`42 Id.

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 15 of 16
`explained, Defendant's decision, while ultimately incorrect, was based on
`substantial evidence. Therefore, the Court does not find that the relative merit
`of the parties positions was so drastic as to justify an award and the fifth factor
`weighs against an award. Viewing the factors together, and in light of the fact
`that the Fifth Circuit held than an award of fees under similar circumstances
`was an abuse of the district court's discretion,43 the Court declines to award fees
`in this case.
`D. Pre-judgment Interest
`Plaintiff also requests pre-judgment interest. Federal courts have the
`discretion to award pre-judgement interest in ERISA cases.44 Because there is
`no federal statute governing the rate of pre-judgment interest in ERISA cases,
`courts ordinarily look to state law.45 In this case, the Court elects to award pre-
`judgment interest from the date of the denial of benefits, April 5, 2012 until the
`entry of final judgment in this case, at the rate provided in Louisiana Revised
`Statute 13:4202. In this case, that rate is 4%.46 Post-judgment interest will
`accrue at the federal rate.47
`43 Id.
`44 Hansen v. Cont'l Ins. Co., 940 F.2d 971, 983–84 (5th Cir. 1991).
`45 Id.
`46 The Louisiana judicial interest rates are published by the Louisiana Bar Association
`and available on its website.
`47 See Enhanced La. Capital v. Brent Homes, No. 12–2409, 2013 WL 5428687, at *4
`(E.D. La. June 6, 2013).

`Case 2:13-cv-04712-JTM-KWR Document 34 Filed 11/25/14 Page 16 of 16
`For the foregoing reasons, Plaintiff's Motion for Summary Judgment is
`GRANTED and Defendant's Motion is DENIED. In order to assist the Court
`in entering a final judgment, the parties shall submit a stipulation to the Court,
`no later than December 5, 2014, as to the amount of benefits due to Plaintiff for
`the period of April 5–12, 2012. By entering this stipulation, Defendant shall not
`waive any rights it may have to challenge this Order or the final judgment in
`this matter, on appeal or otherwise. If the parties cannot agree on the amount
`of benefits due pursuant to this Order, Plaintiff shall file a motion to determine
`the issue.
`New Orleans, Louisiana, this 25th day of November, 2014.

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